Will the Roberts Court overturn Roe v. Wade?: Part III

In this last installment of our three-part series on reproductive health cases in the lower federal courts, we look at challenges to state laws that place restrictions on abortion providers, defund Planned Parenthood, restrict insurance coverage for reproductive health services, and restrict access to Plan B. Only time will tell if any of these cases will end up before the Court. If they do, will the Roberts Court take the opportunity to overturn Roe v. Wade?

Placing undue restrictions on abortion providers

According to the Supreme Court, a state cannot impose an undue burden on a woman seeking to terminate her pregnancy. However, states have been trying to circumvent this ruling by heightening restrictions on abortion providers.

On July 1, federal District Judge Daniel Jordan temporarily blocked a Mississippi law that would have required an OB-GYN who performs abortions to have hospital privileges, even though doctors who perform abortions are regularly denied hospital privileges in the state. As a result of Judge Jordan’s ruling, Mississippi’s only abortion clinic was able to remain open for the time being.

In Louisiana, a strict liability law was enacted to target abortion providers with a different malpractice standard than applies to other doctors in the state. Under this law, doctors who perform abortions could be held liable for malpractice regardless of whether the doctor acted negligently or was otherwise at fault for any harm. Abortion providers were also excluded from the state-run medical malpractice fund, leaving them particularly vulnerable in the face of a malpractice claim. In Hope Medical Group for Women v. LeBlanc, federal District Judge Helen Berrigan held in March that the Louisiana law placed an undue burden on a woman’s right to have an abortion and violated the Equal Protection clause because it treated abortion providers differently from other medical providers. The court found that the law was designed to scare doctors away from providing abortions in Louisiana.

Defunding Planned Parenthood’s non-abortion services

As we speak, Texas is trying to defund Planned Parenthood’s family planning and health services, even though this arm of the organization is separate from its abortion services. After the Texas Health and Human Services Commission decided to defund Planned Parenthood, the organization sued under § 1983 and the First and Fourteenth Amendments. On April 30, federal District Judge Lee Yeakel enjoined the state’s action in Planned Parenthood v. Suehs. On August 21, the Fifth Circuit lifted the injunction, finding that Planned Parenthood was unlikely to prevail in its claims, leaving the state free to withhold funds pending the October trial scheduled in the matter.

Denying health insurance coverage for reproductive health services

In a clever act to curtail abortions, Kansas enacted a law that prohibits insurers from covering abortions. In March, federal District Judge Julie Robinson held that the ACLU of Kansas and Western Missouri had a cognizable claim under the Fourteenth Amendment’s Due Process and Equal Protection clauses. In ACLU v. Praeger, the ACLU argued that the Kansas law would even limit access to abortions that women needed to protect their own health or because of a pregnancy that posed a severe fetal anomaly or was caused by rape or incest. The court found that having to pay out-of-pocket for an abortion placed an undue burden on women and allowed the ACLU’s claims to proceed.

Denying access to Plan B

Whether or not pharmacists can be required to provide Plan B has been challenged in several states. In Washington State, lawmakers passed a law requiring pharmacists to dispense anti-contraception pills. But in February, federal District Judge Ronald Leighton held in Stormans v. Selecky that the law was unconstitutional based on rather suspect reasoning. The court found that the Washington law was unconstitutional under the Free Exercise clause of the First Amendment because it targeted religious conduct, and unconstitutional under the Equal Protection clause of the Fourteenth Amendment because it did not apply to all citizens regardless of their religious affiliation. The end result of the court’s decision is that women in Washington State are being denied access to Plan B.

The future of a woman’s right to choose

As we approach the 40th anniversary of Roe v. Wade, anti-choice activists seem to be revving up their efforts to restrict a woman’s right to choose on a state-by-state basis. State legislatures have become bolder in trying to sidestep Casey’s “undue burden” test by incrementally restricting a woman’s right to choose. Once again, the federal courts must intervene to reinforce what the Supreme Court said definitively in 1973: that a woman’s right to choose an abortion is a fundamental right under the Constitution.

Read more »

Will the Roberts Court overturn Roe v. Wade?: Part II

Part II of our three-part series on the status of reproductive health issues in the lower courts resumes with more examples of court splits and fodder for Supreme Court review. There is growing concern that anti-choice activists are looking to take advantage of a sympathetic Supreme Court to ultimately overturn Roe v. Wade.



Photo: Planned Parenthood Action Fund/womenarewatching.org

Requiring doctors to provide non-medically necessary information to women seeking abortions

In addition to the spate of state laws mandating unnecessary procedures like ultrasounds, as examined in Part I, other states have recently passed laws requiring the provision of unnecessary information to women seeking abortions. Much of the legislation requires doctors to make statements that have nothing to do with women’s health, but are simply a way to discourage women from getting abortions. The lower federal courts have been split on this issue, upholding some state laws while striking down others as unconstitutional. None of these cases have yet been appealed to the Supreme Court, however, the circuit split increases the chances that the Court might grant review in one or more cases.

This July, in Planned Parenthood v. Rounds, the U.S. Court of Appeals for the Eighth Circuit upheld a South Dakota “suicide advisory” provision requiring doctors to tell a woman seeking an abortion that after the procedure she has an increased risk of committing suicide. Despite the shaky evidence for this assertion, which has been soundly refuted by the American Psychological Association, the Eighth Circuit upheld the provision, finding that “a truthful disclosure cannot be unconstitutionally misleading or irrelevant simply because some degree of medical and scientific uncertainty persists.”


In Nebraska and Indiana, similar laws mandating non-medically necessary information were rejected. A Nebraska “informed consent” abortion law was challenged in Planned Parenthood v. Heineman. The law had two troubling provisions. First, it required abortion providers to conduct risk evaluations that were impossible to complete satisfactorily. According to the law, abortion providers would have to evaluate women for every risk factor and disclose every associated complication and individualized quantified risk rate for them. Second, it created a private cause of action for a woman against medical workers and health facilities for failing to meet these impossible standards. Federal District Court Judge Laurie Smith Camp granted a preliminary injunction in July 2010 on the grounds that the law would likely be found unconstitutional under Casey as placing an “undue burden” on a woman’s right to choose. In June 2012, anti-choice groups appealed to the Supreme Court to reverse the Eighth Circuit’s decision denying their motion to intervene in this case.

In Indiana, Planned Parenthood challenged a law that required abortion providers to tell women that a fetus younger than 20 weeks old feels pain, despite scientific evidence to the contrary. The Indiana law also banned state agencies from contracting with or granting money to organizations that provide abortions. In June 2011, Federal District Court Judge Tanya Walton Pratt granted a preliminary injunction to halt enforcement of the law in Planned Parenthood v. Commissioner.

Restricting abortions after 20 weeks

Eighteen states have laws prohibiting dilation and extraction procedures (so-called “partial birth abortion”). The most recent challenge to such a law is currently pending before the Ninth Circuit.

In Arizona, three doctors who perform abortions challenged a state law that would ban abortions after 20 weeks even if it is known that the fetus would not be born alive or survive after birth. The doctors sought an injunction to prevent the law from going into effect, which Federal District Court Judge James Teilborg denied on July 30. Judge Teilborg went even further by dismissing the doctors’ claims in the case, styled Isaacson v. Horne, finding that the law is constitutional because it does not place an undue burden on a woman’s right to choose. Teilborg relied on the same suspect “fetal pain” science that is at issue in the Indiana case discussed above. Plaintiffs immediately sought an injunction from the Ninth Circuit to prevent the law from taking effect. The Ninth Circuit granted the injunction and ordered a first set of briefs on the constitutionality of the law to be submitted by September 4.

Banning certain abortion drugs so that abortions have to be performed in a hospital

In yet another challenge to women’s right to choose, Ohio passed a law that prohibited the use of an abortion drug that does not require a hospital stay. In Planned Parenthood v. DeWine, Federal District Court Judge Susan Dlott ruled last September in favor of Planned Parenthood because the ban placed an undue burden on women’s right to choose by requiring surgery rather than the less invasive option of taking a prescribed drug.

Women are facing an ever more oppressive landscape of restrictive state abortion laws. While pro-choice groups have had some success in challenging these laws in court, the results have been uneven. Today, it seems, a woman’s right to choose depends on what state she is in. Tomorrow, if the Supreme Court decides to weigh in, the reality could be even more drastic.

Up next . . .

Part III will examine recent legal challenges to laws that place undue restrictions on abortion providers, defund Planned Parenthood, and deny health insurance coverage for reproductive services. Finally, recent lawsuits involving access to Plan B will be discussed.

Previously...

Part I focused on the cases and issues most likely to reach the Supreme Court in the near future.

Read more »

Will the Roberts Court overturn Roe v. Wade?: Part I

With the airwaves dominated by talk about “legitimate rape” and “forcible rape” (as opposed to their nonsensical counterparts, “illegitimate rape” and “consensual rape”), it is clear that the War on Women rages on. At stake is not merely offensive language, but real battles over the ability of women to control their own bodies and destinies. Yet another episode in this fight may be coming soon, this time before the U.S. Supreme Court. A series of lawsuits making their way through the federal and state courts may be setting the stage for the Supreme Court to overturn Roe v. Wade as it nears its 40th anniversary in 2013.



Photo via ellabakercenter.org

This post is the first in a three-part series describing the recent legal skirmishes about a new wave of proposed or enacted laws restricting reproductive rights across the country. It is difficult to predict which case, if any, will be heard by the Supreme Court, but the attempts to restrict women’s right to choose range far and wide, including legislation that

• grants “personhood” to fetuses in Oklahoma and Missouri
• mandates non-medically necessary ultrasounds in Oklahoma, North Carolina, and Texas
• requires doctors to provide non-medically necessary information to women seeking abortions in South Dakota, Nebraska, and Indiana
• restricts abortions after 20 weeks in Arizona and Idaho
• bans certain abortion drugs so that abortions have to be performed in a hospital in Ohio
• places undue restrictions on abortion providers in Mississippi and Louisiana
• defunds Planned Parenthood’s non-abortion services in Texas
• denies health insurance coverage for reproductive services in Kansas
• denies or limits access to Plan B in Florida and Washington

The framework for these legal challenges is necessarily the Supreme Court’s 1992 plurality decision in Planned Parenthood of Southeastern Pennsylvania v. Casey. In that decision, the Supreme Court upheld a woman’s right to choose as established by Roe v. Wade, but created a new test to determine whether an abortion regulation was constitutional. Under Casey, a law is constitutional if it does not place an “undue burden” on a woman’s right to have an abortion. An abortion restriction that has only the incidental effect of making it more difficult or expensive to get an abortion would be constitutional. However, if a regulation is implemented in order to obstruct the right to choose rather than to effectuate a legitimate health purpose, it may be unconstitutional. Much ink has been spilled over the past 20 years regarding what is or is not an “undue burden,” but the practical effect of Casey has been to allow more restrictions on access to abortion.

In this first post, we will focus on the cases and issues that have the best chance of reaching the Supreme Court in the near future.

An extreme "personhood" amendment makes its way to the Supreme Court

One of the most serious recent challenges to Roe comes in the innocuously named In Re Initiative Petition No. 395 State Question No. 761 out of Oklahoma. On July 30, 2012, an anti-choice group called Personhood Oklahoma filed a cert petition to the U.S. Supreme Court in its push for a “personhood” amendment. The personhood amendment would grant full rights and privileges at conception. Notably, it does not include standard language deferring to the Constitution or the Supreme Court, in effect, snubbing Supreme Court precedent. In April, the Oklahoma Supreme Court ruled against the proposed amendment as unconstitutional under Casey.

In 1989, the Supreme Court considered a challenge to a similar Missouri law in Webster v. Reproductive Health Services. The states’ laws are similar because they both grant the rights and privileges of personhood at the moment of conception, but the Missouri law specifically defers to the Constitution and the Supreme Court. Additionally, the Missouri law was primarily aimed at restricting state abortion funding and services, including the life-at-conception language only in the preamble to the law. In contrast, the Oklahoma proposal would add life-at-conception language as an amendment to the state constitution, allowing for the possibility that abortion could be classified as murder.

Although the Oklahoma law goes further than the Missouri law, suggesting that it might not survive scrutiny by the Supreme Court, the composition of the Supreme Court is also different than it was in 1989: most notably, Thurgood Marshall has been replaced by Clarence Thomas and Sandra Day O’Connor has been replaced by Samuel Alito. This shift in personnel could well make the difference in the Court’s reproductive rights jurisprudence.

The U.S. Supreme Court will decide in the next couple of months whether to hear Personhood Oklahoma’s appeal.

A court split on mandating non-medically necessary ultrasounds

There is a court split regarding whether states can require women to undergo ultrasounds before they have an abortion. The split makes it more likely that the Supreme Court may accept the case in order to standardize laws in the different states.

More than 20 states have a mandatory ultrasound law according to a recent report from the Guttmacher Institute (PDF). The severity of the laws varies, from actually requiring an invasive ultrasound, to requiring doctors to provide anti-choice brochures and pamphlets to a woman. Oklahoma, North Carolina, and Texas have some of the strictest requirements. In March, Oklahoma’s ultrasound law with so-called “speech-and-display requirements” was struck down by an Oklahoma federal district court in Nova Health Systems v. Edmonson. Speech-and-display requirements mean that the doctor performing the abortion must present an ultrasound image of the fetus to the woman and describe its anatomy to her.

Such requirements have also been challenged in North Carolina. In December 2011, District Court Judge Catherine Eagles preliminarily enjoined these requirements in Stuart v. Huff. She found that the speech-and-display requirements were unconstitutional under the First Amendment and that there was no medical purpose to support a governmental interest in the law.

Pro-choice advocates in Texas have not been as successful. Chief Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit upheld a mandatory ultrasound law with speech-and-display requirements in Texas Medical Providers Performing Abortion Services v. Lakey. Jones ruled in another notable abortion case, McCorvey v. Hill, in which Norma McCorvey, a.k.a. “Jane Roe,” who has become an anti-choice activist, sought to have the Supreme Court’s judgment in Roe v. Wade overturned thirty years later. In addition to writing the majority opinion rejecting McCorvey’s claim, Jones wrote a separate concurring opinion to criticize the Supreme Court’s decision in Roe.

The Fifth Circuit’s decision in Lakey bound District Court Judge Sam Sparks to uphold Texas’ “informed consent” abortion law on remand. Judge Sparks explicitly criticized the Texas law as a way to discourage women from getting abortions. As a result of the ruling, Texas abortion providers are required to perform and display a sonogram and to play the heartbeat for the woman seeking an abortion. Additionally, there is a mandated 24-hour waiting period after the sonogram is performed.
The split between federal courts in Oklahoma, North Carolina, and Texas regarding similar speech-and-display laws suggest that this issue may well end up before the Supreme Court at some point soon.

Up next . . .

Part II will explore legal challenges to laws that require doctors to provide non-medically necessary information to women seeking abortions, restrict abortions after 20 weeks, and ban certain abortion drugs so that abortions have to be performed in hospitals.

Part III will examine recent legal challenges to laws that place undue restrictions on abortion providers, defund Planned Parenthood, and deny health insurance coverage for reproductive services. Finally, recent lawsuits involving access to Plan B will be discussed.

Read more »